MSL Import and Export Company Ltd v Maure [2001] SBHC 153; HC-CC 066 of 2001 (31 October 2001)

HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NUMBER 066 OF 2001

MSL IMPORT AND EXPORT COMPANY LIMITED

–V-

DAVID MAURE

HIGH COURT OF SOLOMON ISLANDS
(PALMER ACJ)

HEARING: 30TH OCTOBER 2001
JUDGMENT: 31ST OCTOBER 2001

PALMER ACJ: This is an application initially made by ex-parte summons filed 25th October 2001 but converted to an inter-parte summons as the matter was already before the Court and the Plaintiff represented. The matter was adjourned from Friday 26th October to 30th October for hearing. The Applicant/Defendant (“Applicant”) seeks orders inter alia to have the proceeds of 1,600 cubic meters of logs to be exported on or about 26th October 2001 restrained and paid into a joint solicitor’s trust account. Grounds relied include the fear or concern by the Applicant that should he win his case at the end of the day, the total proceeds of the logs would not be sufficient to compensate him for the damage caused to his land and that he would then find it difficult to recover any losses he suffers. He relies on the fact that since these proceedings had been initiated he had commenced proceedings before the Chiefs in accordance with the Local Courts Act to have a customary land dispute over Central Barora Ite litigated (see copy of letter dated 26th July 2001 addressed to Chief Richard Haile annexed as Exhibit “DM2” to the affidavit of David Maure filed 28th August 2001). He also reiterates the fact that proceedings are well under way for the question of validity of the timber licence and timber rights granted to the Plaintiff to be litigated before this court within the next week or so. He submits there are serious issues pending before this court for determination and that the court should consider restraining the proceeds to protect his interests.

Respondent objects the application on several grounds. Mr. Tegavota submits this application is a repeat of an earlier application filed 18th June 2001 in which similar orders were sought but which were denied by the court in its judgement delivered 9th July 2001. He also submits that customary issues raised in previous proceedings by the Applicant do not relate to Central Barora Ite and therefore are irrelevant. Mr. Tegavota acknowledges that there is a dispute though as to customary ownership over the said land between the Applicant and the grantors Ofoniel Vato Tabo, Dr. Obed Alemaena, Luke Eta, and Peter McPherson (hereinafter referred to as “the Grantors”) of timber rights to the Respondent. On question of serious issues, he submits there is none, issues of law though will shortly be heard before this court. On questions of whether damages would be an adequate remedy, he submits the Respondent is in position to compensate the Applicant for damages caused if he should win his case at the end of the day.

I agree with submissions of learned Counsel Mr. Tegavota that issues affecting or arising in connection (including customary land disputes) with customary land are non-justiciable before this court (see subsections 254(1), (3) and (4) of the Land and Titles Act (Cap. 133)). This simply means that any claims of the Applicant based in custom before this court remain as mere assertions or claims until finally determined. The problem this raises is how this court then should view such rights that are being agitated before it when they are yet to be finally determined. One possible effect this may have is that until such matters have been determined in accordance with the Local Court Act, issues raised may not satisfy the test of a serious issue being raised. The only evidence before this court is that proceedings have been initiated by the Applicant (see Exhibit “DM2”), but no hearings have been confirmed to date by the Chiefs. Other serious issues still pending before this court pertain to questions of validity of the licence and timber rights agreement of the Respondent. Those will be heard next week. The Applicant does not seek to restrain the operations of the Respondent. The orders sought however will have the same effect if granted in that virtually it will have the same effect of stopping the operations of the Respondent, as it will no longer have access to the funds. To that extent the application is misconceived. However there are grounds for having a portion of the proceeds restrained pending determination of the outstanding issues in law before this Court. If the Applicant eventually establishes that it is the rightful landowner, a process which may take years, the Respondent may have already moved on or disappeared from the scene. Also if the Applicant should succeed in its claim against the validity of licence and timber rights which the Respondent relies on and on the strengths of the parties case, the scale tilts in favour of the Applicant, operations could be suspended indefinitely pending determination of the customary land issues between the Grantors and Applicant. The problem Applicant may find is that it may not be able to proceed with its counter-claim until its own claim of ownership is determined. Parties in my respectful view should also consider whether the Grantors should be joined as the Second Plaintiff in this case. It is thus vital in the interests of justice that a portion of those proceeds are preserved to cover the claims for compensation and damage which the Applicant has made in his counter-claim. Whilst it has been submitted that the claims for compensation would be more than the proceeds of the logs received, no suggestion has been made that the Respondents would not be able to meet any monetary claims for damages. Taking all things into account, I am satisfied at least 20% thereof should be restrained pending determination of the issues before this court or until further orders.

Orders of the Court:

1. Grant orders to restrain only 20% of the gross proceeds of sale of 1,600 cubic meters of logs valued at USD71,875.00 or SBD391,245.24 exported on or about 26th October 2001 and to be paid into a joint solicitors trust account in Counsel’s names until further orders of this Court.
   
2. The Respondent to meet the costs of the Applicant in this proceeding.
   

The Court.